Normal Stresses No Mitigation

The Illinois Review Board proposes a six-month suspension

The Hearing Board found that Respondent deliberately and knowingly directed that $11,635, which should have been held to satisfy the Medicare lien in Mr. Swanson’s matter, be transferred from his firm’s client trust account into the firm’s general account as earned fees, when he knew he had no authority to do so, in violation of Rules 1.15(a) and 8.4(c).

It also found that the $1,000 paid to Mr. McCool was a security retainer that remained Mr. McCool’s property until it was applied to charges for services actually rendered by Respondent, and that there was no evidence that Respondent had provided services to earn the $347.50. It thus found that, by directing that the $347.50 be transferred from the firm’s client trust account into its general account, Respondent failed to hold client funds separate from the law firm’s funds, in violation of Rule 1.15(a), and, without authority, withdrew $347.50 that had not been earned as fees, in violation of Rule 1.15(c). It found, however, that the Administrator had failed to prove by clear and convincing evidence that Respondent purposefully or intentionally took the $347.50 while knowing it was client funds, and therefore declined to find that Respondent’s misappropriation of the $347.50 was dishonest.

Finally, it found that Respondent engaged in dishonesty, in violation of Rule 8.4(c), by creating and sending two letters that falsely purported to be written, authorized, and signed by Ms. George.

The Hearing Board recommended that Respondent be suspended for five months, with the suspension stayed in its entirety by a one-year period of probation.

The last count

In April 2014, Respondent was dating a woman, Stacie Ballard, whom he had represented in divorce proceedings several years earlier, and for whom he remained the attorney of record in the matter. After Ms. Ballard did not receive child support payments from her ex-husband, Respondent drafted a subpoena and letter to the ex-husband’s employer asking for payroll information about the ex-husband. Respondent prepared the documents using the letterhead and name of Respondent’s colleague, Elizabeth George, who was a first-year associate at the firm and who had given him permission to do so. At Respondent’s request, Ms. George signed the documents, and Respondent delivered them to the ex-husband’s employer. Respondent testified at his hearing that he thought it would be better for Ms. George to handle the child support matter, instead of himself, so that Ms. Ballard would not have to explain to the court that she and Respondent were dating.

In August 2014, Respondent sent two additional letters to the ex-husband’s employer, also on Ms. George’s letterhead and under her name. On both letters, Respondent signed “Elizabeth George” in the signature space above her typed name. On both of these occasions, Ms. George was unaware of the letters and had not given Respondent permission to sign her name or use her letterhead.

Sanction

In mitigation of his serious misconduct, Respondent has no prior discipline other than the reprimand issued by the Iowa Supreme Court in relation to Mr. Swanson’s matter. He has performed pro bono work and substantial volunteer activities. No client ultimately was financially harmed by Respondent’s misconduct, and Respondent cooperated in his disciplinary proceeding. He also had multiple witnesses, including two sitting Illinois judges and several attorneys, testify about his good reputation for honesty and integrity.

Respondent testified that he was suffering from physical and mental health issues around the time of his misconduct, and the Hearing Board appeared to consider these issues as mitigating. We note, however, that some of the problems about which Respondent testified – a heart attack and divorce a year prior to his misconduct – are not temporally related to his misconduct. Other problems about which he testified – stress caused by his oldest son leaving for college and keeping up with a busy practice, and “situational” depression for which he was taking medication but not receiving therapy – are no different than what many lawyers experience. Consequently, we do not regard these issues as mitigating.

In aggravation, the Hearing Board found that Respondent did not testify truthfully about the transfer of the $11,635 in the Swanson matter or about having Ms. George’s permission to sign her name to one of the August 2014 letters. It also found that Respondent’s misconduct was not an isolated incident. It was troubled, as are we, by Respondent’s lack of understanding of ethical requirements or failure to consider such requirements before acting. We also note that, while Respondent may not have caused actual financial harm to his clients, his actions caused significant stress for Ms. George.

Considering Respondent’s misconduct as well as the mitigating and aggravating factors, we believe that a six-month suspension is well-supported by precedent.

Interestingly, the case involving the unauthorized payment was in Iowa. (Mike Frisch)